Discrimination and Illegal Contracts of Employment

A person who is knowingly working illegally in the UK cannot put forward a claim of racial discrimination arising from her treatment by her unlawful 'employers says the Court of Appeal in the case of Hounga v Allen [2012] EWCA Civ 609.

Ms Hounga, who is Nigerian was employed by a family as an au pair. She had no legal right to be in the country and did not have the required legal permit. It was held that both she and her employers were aware that her employment was unlawful. She was dismissed and upon dismissal brought a claim in the Employment Tribunal for unfair dismissal amongst other claims including Race Discrimination. All claims failed at the ET on the grounds of illegality but the ET held that her claim of Race Discrimination should continue on the basis that it did not require a valid contract of employment.

The Court of Appeal was asked to consider, along with other issues, whether Ms Hounga could bring a race discrimination claim even though she was working illegally. In deciding this point the Court analysed two cases Hall v Woolston Hall Leisure Ltd [2001] ICR 99 and Vakante v Governing Body of Addey and Stanhope School (No 2) [2005] ICR 231.

In Hall the claimant was allowed to bring a sex discrimination claim even though she had acquiesed in an ongoing illegallity by her employer whilst in Vakante an illegal immigrant was prevented from bringing a claim.

The Court ruled that there was no conflict between the two cases, in the case of Ms Hall there was no active participation by her in the illegality merely acquiescence once she realised that her employer was acting illegally whilst in Vakante by contrast he was an active party in the illegality.

Applying the same principles to the case of Ms Hounga she similarly was fully aware that she was not legally allowed to work and, even though the Court accepted that she was a vulnerable person, she nevertheless could not bring a claim which arose out of her illegal conduct.

As Lord Justice Rimer said in his speech "If this court were to allow her to make that case, and so rely upon her own illegal actions, it would be condoning her illegality. That is something the court will not do".

Thanks to D Barnett for notifying me about this.